Final Order 1

Order Details: Notice of Motion
Pdf Text: N/M. No.1094/19 (SC No.2909/18)
MHCC010028342019
Presented on : 13/03/2019
Registered on : 13/03/2019
Decided on : 05/11/2024
Duration : 5 Y 7 M 24 D
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.1094 OF 2019
IN
SHORT CAUSE SUIT NO. 2909 OF 2018
Rajkumar Kaluram Prajapati ... Plaintiff
- Versus -
Kaluram Saturam Prajapati & Anr. … Defendants
CORAM : HIS HONOUR JUDGE
SHRI. PRASHANT C. KALE
CITY CIVIL COURT, GR. BOMBAY
(C. R. NO.65)
DATE : 05th November, 2024.
Appearance :-
Mr. Anand Jadhav, advocate for Plaintiff.
Mr. Priyank Shukla, advocate for Defendants.
O R D E R
By this notice of motion the plaintiff has prayed for
restraining defendants or any person claiming through them from
disturbing his peaceful use, occupation and possession in respect of suit
premises and/or dispossessing his family members from suit premises
and/or parting with possession of the suit premises to any third party.
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N/M. No.1094/19 (SC No.2909/18)
2. In short, the case of the plaintiff is that he has filed suit for
declaration and injunction in respect of suit premises against
defendants. Defendant nos. 1 and 2 alongwith some anti social
elements are trying to dispossess plaintiff and his family members from
the suit premises and disturbing his peaceful possession. The plaintiff
submits that he relies upon plaint and all averment made therein while
prosecuting this notice of motion. It is further submitted by the plaintiff
that in case the injunction is not granted to him, then great prejudice
will be caused to him and balance of convenience lies in his favour.
Thus, prayed for allowing notice of motion as prayed for.
3. Defendants have filed their written statement and adopted
the same to be their reply to the notice of motion vide submissions
dated 28.07.2022. Defendants are coming with the case that defendant
No.1 is the father of the plaintiff and defendant No.2 is the brother of
the plaintiff. It is specifically submitted by defendant No.1 that plaintiff
is not paying rent to the landlord and same was paid by him. Plaintiff
has not produced any rent receipts on record in the instant suit.
Defendant No.1 has paid rent and electricity bills in respect of suit
premises. The suit property is purchased by defendant No.1 out of his
own income and out of love and affection, the plaintiff being elder son
was given shelter at suit premises. The plaintiff failed to maintain
defendant No.1. The plaintiff is in employment with ONGC and he has
obtained separate accommodation somewhere at Navi-Mumbai, Panvel,
however same is not disclosed by the plaintiff. There is no cause for
filing this suit and same is filed with sole intention to harass defendant
No.1. Thus, prayed for dismissal of notice of motion.
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N/M. No.1094/19 (SC No.2909/18)
4. Heard both parties. Perused records. Defendants have filed
their written notes of arguments at Exhibit-4. Defendant No.1 is coming
with the case that suit premises is his self acquired property. The
plaintiff has neglected to maintain defendant No.1. The plaintiff was
residing in Uttar Pradesh and he came to Mumbai in the year 2010 and
was staying in the suit premises alongwith his wife and children on
ground floor. Defendant No.2 has made construction at first floor and
defendant No.1 residing at first floor. In fact, the plaintiff has not
described the suit premises, particularly each consist of ground floor
and first floor. The present suit filed by the plaintiff is not proper and
without any cause of action. Thus, prayed for dismissal of the notice of
motion.
5. Points of determination and my findings therein are as
under :
POINTS FINDINGS
i) Whether there is prima facie case
involving serious question to be tried ? ...........................Yes
ii) Whether by no grant of injunction the
plaintiff will suffer irreparable loss ? ...........................Yes
iii) Whether balance of convenience lies in
favour of the plaintiff ? ...........................Yes
iv) What order ? Notice of motion is
allowed.
REASONS FOR FINDINGS
6. At the outset, I would like to mention that relationship
between the plaintiff and defendants is not disputed on record.
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Similarly, by virtue of written statement, defendants are admitting that
the plaintiff is residing in the suit premises alongwith his wife and
children. It has also came on record that shelter in suit premises was
given out of love and affection. The theory of the plaintiff is that suit
premises is ancestral property and he is in possession of the same.
Threat was gave by defendants to disposes him and same is fortified on
record by filing NC reports dated 01.11.2018 and 02.11.2018. The
other contentions of the plaintiff is that defendants are trying to
disposes him from the suit premises without followings due process of
law. Undisputedly, there is no document to show that the suit premises
is self acquired property of defendant No.1. Moreover, the plaintiff is
residing in the suit premises with the permission of defendant No.1 as
per submissions of defendant No.1.
7. Here, defendant No.1 is blowing hot and cold at the same
time. The reason from arriving at this conclusion is that at one point of
time, defendant No.1 submit that he allowed the plaintiff to reside in
the suit premises out of love and affection, it being his self acquired
property and at next juncture, it is submitted by defendant No.1 that
plaintiff has not paid rent of the suit premises and electricity bills. It is
submitted by defendant No.1 he paid rent and electricity bills in respect
of suit premises. Thus, there are contradictory versions in respect of
status of the plaintiff at the suit premises. By virtue of the affidavit,
documents and the contentions of defendants, it has very well come on
record that the plaintiff is in possession of the suit premises more
particularly described in para 2 of the plaint. The description of the suit
premises clearly denotes that the suit premises is at ground floor. It is
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nowhere the contention of the plaintiff that the suit premises also
consist of property at first floor. Thus, contentions of defendants in
respect of improper description of the suit premises does not survive.
8. By virtue of the undisputed facts the possession of the
plaintiff over the suit premises is established on record. There is no
material on record on behalf of defendants to show that how the
plaintiff has not come with the clean hands before this court. Grant of
temporary injunction is a discretionary relief and in view of the
undisputed facts the plaintiff has prima facie established on record that
defendants are trying to disturb his possession over the suit premises.
9. Relying upon the affidavit and the documents of the
plaintiff there is no material on record to discard the contentions of the
plaintiff. The apprehensions of the plaintiff are fortified on record by
virtue of the pleading of defendants. Thus, the apprehensions of the
plaintiff that there is every likely-hood that defendants may disturb his
possession over the suit premises is bona fide and genuine.
10. Appreciating the arguments of the plaintiff in the light of
documents filed on record, prima facie there is no material to discard
the contentions of the plaintiff. In instant case the possession of the suit
premises is with the plaintiff. The plaintiff has put-forth the very
legitimate prayer that during the subsistence of the suit, the defendants
be restrained from dispossessing him from the suit premises without
following due process of law.
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11. The reply of defendants on records speaks about their
intentions. Thus, the plaintiff has made out a prima facie case. There is
no reason why the plaintiff would not be entitled to claim protection on
equitable grounds at the hands of this court to adjudicate the legal
injury which he may suffer during the course of trial. While exercising
the discretion, I find that the contentions of the plaintiff are prima facie
bonafide. Appreciating the relevant considerations for grant of
temporary injunction with the present set of circumstances, the plaintiff
has successfully made out a
prima facie case on record. In view of the
record irreparable loss would be caused to the plaintiff in case the
injunction is withheld. Thus, balance of convenience lies in favour of
the plaintiff. Resultantly, the plaintiff is entitled for the innocent
injunction of restraining defendants from dispossessing him from the
suit premises during the subsistence of the suit. Hence, I answer the
point No. (i) to (iii) in
affirmative and pass the following order. -
O R D E R
1. Notice of Motion No.1094/2019 in Suit No.2909/2018
is allowed in terms of prayer clause (a).
2. Parties to bear their own costs.
3. Proceeding of Notice of Motion No.1094/2019 in Suit
No.2909/2018 is closed.
Date : 05/11/2024. (Prashant C. Kale )
Ad-hoc Judge
City Civil Court, Gr. Bombay.
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N/M. No.1094/19 (SC No.2909/18)
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
07.11.2024 at 11.40 am ( Samruddhi Jadhav)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Shri. Prashant C. Kale (C.R.No.65)
Date of Pronouncement of
JUDGMENT/ORDER
05/11/2024
JUDGMENT/ORDER signed by
P.O.on
07/11/2024
JUDGMENT/ORDER uploaded on 07/11/2024
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